Pugliese v. Utica National Insurance Group, Inc.

—Appeal from an order of Supreme Court, Herkimer County (Kirk, J.), entered June 18, 2001, which denied defendant’s motion seeking summary judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion seeking summary judgment dismissing the complaint. Plaintiff allegedly slipped on ice and fell on the curb in front of defendant’s building. We conclude that defendant failed to meet its initial burden of establishing that it lacked actual notice of an icy condition (see Wright v Rite-Aid of NY, 249 AD2d 931, 931). In support of its motion, defendant submitted the deposition testimony of its facilities supervisor stating that the area from the building up to the curb, but not including the curb, was kept clear of snow and ice by means of electric mats under the concrete. The facilities supervisor testified that he was unaware whether the system kept the curb area free of ice and that, although he was ultimately responsible for maintaining the area, there was no policy with respect to checking the area for ice except to “keep ahead of it” (cf. Bernardo v P. & J. Edwards, Inc., 246 AD2d 950, 950-951). The facilities supervisor further testified that there was no procedure pursuant to which he would receive reports of icy conditions (cf. Wimbush v City of Albany, 285 AD2d 706, 707). Defendant met its initial burden of establishing that it lacked constructive notice of the icy condition by submitting the deposition testimony of plaintiff, wherein she stated that she did not observe ice when she walked to and from the building. However, plaintiff raised an issue of fact whether ice in the area of the curb was visible and apparent by her testimony that she felt ice when she fell, and that the area, which was [993] concrete, “looked like it was marble” and “it was clear” (see Wright, 249 AD2d at 931-932). Present—Pigott, Jr., P.J., Green, Hurlbutt, Scudder and Burns, JJ.